LLB140 Study Guide - Final Guide: Precedent, Institute For Operations Research And The Management Sciences
17. INDEPENDENCE – AVOIDANCE OF PERSONAL BIAS
17.1 A solicitor representing a client in a matter that is before the court
must not act as the mere mouthpiece of the client or of the instructing
solicitor (if any) and must exercise the forensic judgments called for
during the case independently, after the appropriate consideration of the
client’s and the instructing solicitor’s instructions where applicable.
17.2 A solicitor will not have breached the solicitor's duty to the client,
and will not have failed to give appropriate consideration to the client's or
the instructing solicitor's instructions, simply by choosing, contrary to
those instructions, to exercise the forensic judgments called for during
the case so as to:
17.2.1 confine any hearing to those issues which the solicitor
believes to be the real issues;
17.2.2 present the client's case as quickly and simply as may be
consistent with its robust advancement; or
17.2.3 inform the court of any persuasive authority against the
client's case.
17.3 A solicitor must not make submissions or express views to a court
on any material evidence or issue in the case in terms which convey or
appear to convey the solicitor's personal opinion on the merits of that
evidence or issue.
17.4 A solicitor must not become the surety for the client's bail.
18. FORMALITY BEFORE THE COURT
18.1 A solicitor must not, in the presence of any of the parties or
solicitors, deal with a court on terms of informal personal familiarity
which may reasonably give the appearance that the solicitor has special
favour with the court.
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19. FRANKNESS IN COURT
19.1 A solicitor must not deceive or knowingly or recklessly mislead
the court.
19.2 A solicitor must take all necessary steps to correct any misleading
statement made by the solicitor to a court as soon as possible after the
solicitor becomes aware that the statement was misleading.
19.3 A solicitor will not have made a misleading statement to a court
simply by failing to correct an error in a statement made to the court by
the opponent or any other person.
19.6 A solicitor must, at the appropriate time in the hearing of the case if
the court has not yet been informed of that matter, inform the court of:
19.6.1 any binding authority;
19.6.2 where there is no binding authority, any authority decided
by an Australian appellate court; and
19.6.3 any applicable legislation, known to the solicitor and
which the solicitor has reasonable grounds to believe to be
directly in point, against the client's case.
19.8 A solicitor who becomes aware of matters within Rule 19.6 after
judgment or decision has been reserved and while it remains pending,
whether the authority or legislation came into existence before or after
argument, must inform the court of that matter by:
19.8.1 a letter to the court, copied to the opponent, and limited to
the relevant reference unless the opponent has consented
beforehand to further material in the letter; or
19.8.2 requesting the court to relist the case for further argument
on a convenient date, after first notifying the opponent of the
intended request and consulting the opponent as to the
convenient date for further argument.
19.10 A solicitor who knows or suspects that the prosecution is unaware
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of the client's previous conviction must not ask a prosecution witness
whether there are previous convictions, in the hope of a negative
answer.
19.11 A solicitor must inform the court of any misapprehension by the
court as to the effect of an order which the court is making, as soon as
the solicitor becomes aware of the misapprehension.
19.12 A solicitor must alert the opponent and if necessary inform the
court if any express concession made in the course of a trial in civil
proceedings by the opponent about evidence, case-law or legislation is
to the knowledge of the solicitor contrary to the true position and is
believed by the solicitor to have been made by mistake.
20. DELINQUENT OR GUILTY CLIENTS
20.1 A solicitor who, as a result of information provided by the client or a
witness called on behalf of the client, learns during a hearing or after
judgment or the decision is reserved and while it remains pending, that
the client or a witness called on behalf of the client:
20.1.1 has lied in a material particular to the court or has
procured another person to lie to the court;
20.1.2 has falsified or procured another person to falsify in
any way a document which has been tendered; or
20.1.3 has suppressed or procured another person to
suppress material evidence upon a topic where there was a
positive duty to make disclosure to the court;
must –
20.1.4 advise the client that the court should be informed of
the lie, falsification or suppression and request authority so to
inform the court; and
20.1.5 refuse to take any further part in the case unless the
client authorises the solicitor to inform the court of the lie,
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Document Summary
17. 2. 1 confine any hearing to those issues which the solicitor believes to be the real issues; 17. 2. 2 present the client"s case as quickly and simply as may be consistent with its robust advancement; or. 17. 2. 3 inform the court of any persuasive authority against the client"s case. 17. 4 a solicitor must not become the surety for the client"s bail: formality before the court. 19. 1 a solicitor must not deceive or knowingly or recklessly mislead the court. 19. 2 a solicitor must take all necessary steps to correct any misleading statement made by the solicitor to a court as soon as possible after the solicitor becomes aware that the statement was misleading. 19. 3 a solicitor will not have made a misleading statement to a court simply by failing to correct an error in a statement made to the court by the opponent or any other person.
